U.S. v. Petito
| Citation | 671 F.2d 68 |
| Decision Date | 10 March 1982 |
| Docket Number | No. 506,D,506 |
| Parties | , 9 Fed. R. Evid. Serv. 1594 UNITED STATES of America, Appellee, v. Amadio PETITO, Appellant. ocket 81-1333. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Laura A. Brevetti, U. S. Atty., Organized Crime Strike Force, E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. N. Y. and Thomas P. Puccio, U. S. Dept. of Justice, Organized Crime Strike Force, E. D. N. Y., Brooklyn, N. Y., on brief), for appellee.
J. Jeffrey Weisenfeld, New York City, for appellant.
Before TIMBERS, KEARSE and CARDAMONE, Circuit Judges.
During a grand jury investigation in the Eastern District of New York into illegal payoffs to union leaders of Local 29 of the Blasters, Drillrunners and Miners Union, appellant, Amadio Petito, an officer of that union, was called as a witness and refused to testify. The district court thereupon granted him immunity. 1 When appellant Subsequently convicted for criminal contempt and perjury, appellant has raised several issues for our consideration on this appeal. Principal among them is his assertion that the statement made to him by the district court led him to believe that the only result of his refusal to testify would be his liability for civil contempt, and that, upon appearing and testifying, no further consequences would be visited upon him. He claims that when held for civil contempt he was entitled-under notions of due process-to notice of the possibility that a charge could be laid against him for criminal contempt. Because we find this contention unpersuasive and the other issues raised without merit, we affirm the judgment of conviction.
still refused to testify after the grant of immunity, the district court advised him that he would "be held in custody for the life of the Grand Jury, or prior to that at such time as (he) may purge (him)self of contempt by testifying before the Grand Jury."
In 1979 a Special Grand Jury in the United States District Court for the Eastern District of New York began an investigation to determine whether Louis Sanzo, president of Local 29 of the Blasters, Drillrunners and Miners Union, had received illegal payoffs during the years 1974 through 1979, and whether Samuel Cavalieri, who was not a union member, actually controlled Local 29 and shared in the payoffs to Sanzo. Appellant Petito, who was secretary-treasurer of Local 29 during part of this time, was called to testify before the grand jury on July 20, 1979. When asked questions concerning Samuel Cavalieri and Local 29, Petito refused to answer, invoked his Fifth Amendment privilege and requested immunity from prosecution based on his testimony. He also refused to testify without a court ruling on whether certain questions proposed to him were based on information obtained from illegal electronic surveillance.
Petito appeared with counsel before Judge Henry Bramwell on July 20th. At that time the prosecuting attorney submitted an order signed by a New York State Supreme Court Justice authorizing surveillance of Sanzo's telephone. The prosecutor acknowledged that Petito would be interrogated before the grand jury on matters derived from this wiretap. Ruling that the wiretap order was facially valid, Judge Bramwell granted Petito immunity and directed him to testify. The court also warned Petito that failure to testify truthfully might result in his prosecution for perjury.
Appellant reappeared before the grand jury on the same day. For the second time he refused to testify concerning Cavalieri and the union, asserted his Fifth Amendment privilege, and declined to answer questions based on the allegedly illegal interceptions of his telephone conversations with Sanzo. The prosecutor then advised Petito that he could no longer withhold his testimony on these grounds and that his further refusal to obey the court's order could result in his being held in contempt and incarcerated until he agreed to answer questions. The parties returned to Judge Bramwell who once again ordered Petito to testify. After conferring with his attorney, he responded that he would not. Judge Bramwell found Petito in contempt of court and made the statement previously quoted.
Appellant was held in custody for twenty-seven days. He next appeared before the grand jury on August 16, 1979, at which time he made a statement that he still objected to answering questions but would do so because a judge had ordered him to. He proceeded to respond to a number of inquiries about himself, Cavalieri, Sanzo and the union.
The grand jury interrogated him with respect to his whereabouts and activities following a union nomination meeting held on May 4, 1978. At first he stated that he could not presently recall exactly the events of one specific night some fifteen or sixteen months in the past. The inquiry focused on whether Petito had visited a social club on Second Avenue between 109th and 110th Streets run by Samuel Cavalieri. Petito stated that at that time his father lived in the vicinity of Cavalieri's social club and that he might have gone to visit his father after the meeting, but that he could not remember whether he did or not. He concluded with "I am telling you that I possibly, yes, I might have seen (Cavalieri), I might have been with my father, I don't know."
The following day, Petito stated that he wanted to change part of his previous testimony which he believed was incorrect. He then said
I thought about it and I remember that I did not go (to Cavalieri's social club)... I mentioned to you that it was a possibility that if I did go to 109th Street it was a question of seeing my father who was alive at the time. But remembering after I left here, I had met my father outside of where we had this election...I remember meeting him and after the meeting and that's why I am saying now that I never went to 109th Street. Before I answered there was a possibility that I did or didn't. More or less the reason was to see my father, but I remember seeing my father outside of the election hall.
Petito later repeated that he did not go to Cavalieri's social club on May 4, 1978.
The grand jury filed an indictment on March 17, 1981 which charged Petito with criminal contempt 2 for willfully disobeying Judge Bramwell's order to testify after receiving a grant of immunity, and with perjury 3 for his August 17, 1979 testimony that he did not go to Cavalieri's social club.
To prove criminal contempt the government offered the court orders and grand jury transcripts detailing the above-described events of July 20, 1979. To support the perjury count the minutes of Petito's entire testimony before the grand jury on August 16 and 17, 1979 were admitted into evidence and portions were read to the trial jury. Additionally, William Dunn, a Special Investigator for the Nassau County District Attorney's Office, testified that on May 4, 1978 between 7:30 and 9:00 p. m. he conducted a surveillance outside of Cavalieri's social club in order to determine whether Petito, Sanzo and Cavalieri would attend a meeting there. Dunn had been provided with a description of Petito as being a person 5'7 tall, weighing 175 pounds, stocky, bald and clad in work clothes. Dunn testified that, using binoculars and standing about fifty yards away, he observed a man whom he identified in court as Petito cross the street and enter the social club at about 8:00 p. m. He also observed Sanzo and Cavalieri enter the club at approximately the same time. About forty minutes later he saw all three men exit the club and walk away together. Dunn instructed a photographer who accompanied him to take pictures of these individuals. He further testified that he saw and recognized Petito again in Sanzo's company two months later on July 6, 1978, at which time photographs were also taken. When later viewing these July 6th photos, Dunn confirmed his identification of Petito as the man he had seen on May 4, 1978 at Cavalieri's social club.
Appellant presented four witnesses. One testified that Petito arrived at his home in Port Washington, New York at 8:45 p. m. on May 4, 1978. Another said that he "hung around" the social club regularly, but did not see Petito there on May 4, 1978. A third stated that he owned a bakery adjacent to the club and did not see Petito on Second Avenue that evening. The last witness claimed that he saw Petito leave the union meeting hall at 8:00 p. m. in a car with Louis Sanzo and others.
Both before and during trial appellant requested discovery of the wiretap supporting papers of his telephone conversation with Sanzo or a hearing on the propriety of issuing the wiretap order. His requests were denied.
Preindictment Notice of Possible Criminal Contempt Charge Is
Appellant has raised what appears to be an issue of first impression in this circuit. He contends that the statement the district court made to him after he had been granted immunity and still refused to testify, was in some way misleading. He claims the statement led him to believe that the only consequence of his conduct was civil contempt, and that there would be no further sanction if he testified.
This view of the law misreads the function of civil and criminal contempt. The one is coercive, to compel obedience to a lawful court order; the other is retributive, to punish for an offense against the public and to vindicate the power of the court. An individual who refuses obedience to a valid order is subject to both civil and criminal contempt for the same acts. Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95, 102, (1957).
The power to impose coercive imprisonment in a civil contempt proceeding is limited by the individual's ability to comply with the court's order. When the grand jury is discharged, confinement for civil contempt must...
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